Mossad & Extrajudicial Assassination

If Israel killed Mahmoud al-Mabhouh, did it have the right to?

I don’t know whether Israel did or did not assassinate the leader of the Hamas military wing, Mahmoud al-Mabhouh. But assuming for argument’s sake that the Mossad made the hit, did it have the right to engage in this “extrajudicial assassination?”

Not all extrajudicial killings are unlawful. Every soldier who kills an enemy combatant engages in an extrajudicial killing, as does every policeman who shoots a fleeing felon. There are several complex legal questions involved in assessing these situations.

First, was the person who was killed a combatant, in relation to those killed him? If Israel killed Mabhouh, there can be absolutely no doubt that he was a combatant. He was actively participating in an ongoing war by Hamas against Israeli civilians. Indeed, it is likely that he was killed while on a military mission to Iran in order to secure unlawful, anti-personnel rockets that target Israeli civilians. Both the United States and Great Britain routinely killed such combatants during the Second World War, whether they were in uniform or not. Moreover, Hamas combatants deliberately remove their uniforms while engaged in combat.

So if the Israeli Air Force had killed Mabhouh while he was in Gaza, there would be absolutely no doubt that their action would be lawful. It does not violate international law to kill a combatant, regardless of where the combatant is found, whether he is awake or asleep and whether or not he is engaged in active combat at the moment of his demise.

But Mabhouh was not killed in Gaza. He was killed in Dubai. It is against the law of Dubai for an Israeli agent to kill a combatant against Israel while he is in Dubai. So the people who engaged in the killing presumptively violated the domestic law of Dubai, unless there is a defense to such a killing based on international principles regarding enemy combatants. It is unlikely that any defense would be available to an Israeli or someone working on behalf of Israel, since Dubai does not recognize Israel’s right to kill enemy combatants on its territory.

If it could be proved that Israel was responsible for the hit -- an extremely unlikely situation -- then only Dubai could lawfully bring Israelis to trial. They would not be properly subjected to prosecution before an international tribunal. But what if a suspect was arrested in England, the United States or some other western country and Dubai sought his extradition? That would pose an interesting legal, diplomatic, political and moral dilemma. Traditional extradition treaties do not explicitly cover situations of this kind. This was not an ordinary murder. It was carried out as a matter of state policy as part of an ongoing war. A western democracy would certainly have the right and the power to refuse to extradite. But they might decide, for political or diplomatic reasons, to turn the person over to Dubai.

There could be no better example of a proportionate, retail and focused attack on a combatant who was deeply involved in the rocket attacks on Israel.

Turning now to the moral considerations, which might influence a decision whether to extradite, the situation is even murkier. The Goldstone report suggests that Israel cannot lawfully fight Hamas rockets by wholesale air attacks. Richard Goldstone, in his interviews, has suggested that Israel should protect itself from these unlawful attacks by more proportionate retail measures, such as commando raids and targeted killing of terrorists engaged in the firing of rockets. Well, there could be no better example of a proportionate, retail and focused attack on a combatant who was deeply involved in the rocket attacks on Israel, than the killing of Mahmoud al-Mabhouh. Not only was Mabhouh the commander in charge of Hamas’ unlawful military actions at the time of his death, he was also personally responsible for the kidnapping and coldblooded murder of two Israeli soldiers several years earlier.

Obviously it would have been better if he could have been captured and subjected to judicial justice. But it was impossible to capture him, especially when he was in Dubai. If Israel was responsible for the killing, it had only two options: to let him go on his way and continue to endanger Israeli civilian lives by transferring unlawful anti-personnel weapons from Iran to Gaza, or to kill him. There was no third alternative. Given those two options, killing seems like the least tragic choice available.

I leave to others, more expert in these matters, whether if Israel ordered the killing, it was strategically the right thing, or whether they carried it off in an intelligent manner. But as to the legal and moral right to end the threat posed by this mass murderer, the least bad alternative would seem to be his extrajudicial killing.

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About the Author

Alan M. Dershowitz is the Felix Frankfurter professor of law at Harvard Law School, served as an attorney in several high-profile court cases, and is a sought-after commentator on the Arab–Israeli conflict. He is the author of some 25 books, including The Case for Israel.

The opinions expressed in the comment section are the personal views of the commenters. Comments are moderated, so please keep it civil.

Visitor Comments: 32

(32)
Anonymous,
March 2, 2010 7:44 AM

Mahmoud al-Mabhouh was indulging in unlawful acts of targeting Israeli civilians and attacking Israeli border guards without provocation. He was also responsible of procuring assault weapons and rockets from countries sponsoring terrorism. I don't think any country should criticize the extra judicial execution of such a criminal. If the planning, training and supplying of war material to terrorist does not make a person a combatant, what would! So, whoever may have executed Mahmoud al-Mabhoud has rightly done so.

(31)
kari vilkman,
February 26, 2010 11:40 AM

i suppor ewery actions, what is nessesery to protecet israel country/nations .
i hawe to explain so many times my friends in scandinavia, what hawe happend before, when some newespapers and news, tels exsampls, israel attacts to gaza .

(30)
Roger,
February 26, 2010 2:42 AM

whoever did it

I would of much preferred the terrorist was arrested and tried however in the abscence of that is killing right. Many would say yes some no. However whoever did it did break the law not only of Dubai but several other countries. I think you'll find it a crime to forge or use a false passport. If found to be officially sanctioned by a Government then i would expect a tonque lashing to the ambassador and thats it.

(29)
Esty,
February 25, 2010 8:36 PM

They can have mine

If it was Mossad they did it for US, therefore they can have my passport - its in the top left hand chest of drawers under the window

(28)
Mike,
February 25, 2010 3:09 PM

No innocent lives!

A correction to my ealier message,as above, no innocent
lives werelost. Unfortunately ,it'll be alot tougher for any future actions to be as successfull. G*d Bless

(27)
Michael (New Zealand),
February 24, 2010 9:27 PM

re: David (26)

Technically in the instance I referred to they didn't steal the passports (though they have done that other times). They 'stole' the identity of a couple of deceased people and used it to apply for real NZ passports (which are among the best passports in the world for travel). They were then going to use those to commit their crimes/further their cause/whatever angle you take, and in so doing diminish the value of the NZ passport for all holders. Except they weren't as smart as they thought, they got caught and did time in our Queen's Hilton before being kicked out. Their actions also caused unpredented problems and bad publicity for our Jewish community. I know full well what their thought pattern and ideology is and quite frankly I am very happy to be Jewish as far away as it's possible to get from there. Idealistic? Certainly not. Smart and self preserving? Definitely.

(26)
David,
February 24, 2010 3:07 PM

Passports were not stolen, civilian identities were not taken

Let's assume Mossad is responsible, even though the only 2 individulas arrested were "Palestinian"(and tellingly these last posts, and the world generally, seem unconcerned, once again, if it's Muslims killing Muslims). The passports used were not stolen but were forgeries that were good enough to get the agents into Dubai BUT contained errors, # of digits, birth dates, etc. that made it obvious the passports were used by agents and NOT the individuals named on the passports. The Identities have NOT been stolen in that no one has, before or after, claimed to be these individuals. The more accurate description is a brief impersonation done, intentionally, in a way that makes it clear later the persons impersonated were not involved. They have suffered no financial loss and do not even need to get new credit cards or bank accounts! The U.K. and other states have already started the process of issuing them new passports. Most,or all, also have Israeli passports. The people affected have NOT as far as I am aware, complained. To the contrary, some have publically applauded the killing and commented humorously on therir new found notoriety.
Post #25, Michael, calls Israeli's "criminals" while giving a free pass to a terrorist. While alive, that terrorist was a key figure in the obtaining and provision of rockets that have killed Jewish civilians, including children, and whose charter is filled with anti-semitism and a stated goal to destroy the Jewish state. Given his post, it appears that, sadly, Michael is unconcerned about innocent Jews being murdered, virulent anti-semitism in the Arab world or the destruction of Israel.

(25)
Michael (New Zealand),
February 24, 2010 11:26 AM

We don't give a stuff

if Israel knocks off a few terrorists. We do give a stuff if Israeli criminals steal our passports in aid of their cause as has happened previously. Further more our Jewish community here has NO problems locally independent of those caused by Israeli actions.

(24)
Hanan Druker,
February 24, 2010 5:16 AM

Stealing Identities?

I have absolutely no problem with this trash being killed. The ethical dilemma here is (if it IS Mossad) the taking and using of innocent civilians identities to do this. Someone's identity should be sacred, and never be used by anyone for anything unless that party knows.

(23)
Joe,
February 22, 2010 9:24 PM

How is there a question here?

The monster ni question was already liable for death. He was a clear and present danger as well as being liable for his past crimes.
Would any good person truly argue against it if the US were to put a bullet through Bin Laden's head? Why is this different?
Why is there even a question?

(22)
YORRICKS,
February 22, 2010 5:40 PM

Be true to yourself

I have seen and read of the relevant historical events regarding the struggle for individual identity and land to live in by the Israelli Nation.My thoughts on this event are thus->you mess with Israel and you wake the destroyer of worlds,the Israellis will not tolerate any acts of aggression by anyone without terrible retribution,they hit fast and hard and they dont forget,if you act against them you never sleep again.I am full of admiration and acknowledges that this is the only way to react and stop terrorists,they must be killed or they come back,so well done.Regarding the supposed British passports upset,i can only say -"i would have done the same"as the British are known for just moaning and doing nothing to stop this sort of thing,it takes a very strong and united nation to stop terrorism or make it pay a terrible price for its actions,we in Britain certainly dont.

(21)
Rachel,
February 22, 2010 5:30 PM

TX plane bombing was a terrorist act

Yoav and others, clearly you haven't watched the news footage of the terrorized IRS employees and others who worked in that building after they had to evacuate -- and at least one IRS worker died. Terrorism is (a) an act of extreme violence against (b) non-combatants for (c) an ideological motive. And now his daughter says her father was a "hero" who was "speeaking out against injustice." NO, Ms. Stack, speaking out means writing to the newspaper, or organizing and participating in a protest, and I fully defend the right of everyone in America to do those things. Kamikaze action against a federal building because you believe you're persecuted is a suicide bombing.
To repeat my earlier statement -- if there are ways to capture and bring serious threats through a justice system trial, that is best. This was not possible in the Dubai case, and no one is complaining that they hit an innocent man, so I have no problem with that either. But countries and individuals have to be always on guard that targeted killings are the last resort, not just an easy response. And yes, I'd rather take the chance that sometimes there will be someone who is under the radar of the intelligence agencies --even if it were to cost me my life -- than to live in a police state where people think "shoot first, ask questions later" is the best way to security. Gratitude and respect to whomever killed the Hamas official -- and also to all those who work through conventional means (police, military, intelligence agencies, legal system) to keep societies safe in comnventional ways.

(20)
Nathan,
February 22, 2010 4:35 PM

Good, but....

Terrorists assasinations should not need to follow any international laws. However, creating an international incident with Great Britain over passports seems very sloppy, very unusual of Mossad, and leads me to wonder who really assasinated this terrorist?

(19)
Rosen,
February 22, 2010 3:53 PM

Israel's harsh criticism

Given the criticism that Israel and the Mossad system receives on a regular basis, such terrorists usually find a means to blame Israel for their own actions. But, if Israel has nothing to do with a particular conflict elsewhere in the world, then such terrorist organizations remain almost entirely silent, particularly with not helping out with the earthquake relief effort in Haiti. Unless Hamas and the Palestinian leadership will (eventually) recognize Israel, then they need to realize for the terrorist attacks they pose firing rockets into Israeli cities, then there will always be consequences, given how responsive the IDF and Mossad really is. Furthermore, people need to get over the phobia that Israel is an anomoly and "occupying force" in the Middle East. Indeed, there is much hypocrisy in the Arab/Palestinian leadership with them always attempting to find ways to blame Israel without any solid proof or evidence.

(18)
Mike,
February 22, 2010 3:24 PM

Yes! To targeted terrorist take out's.

So by slealth and gile a single terrorist planner is no longer a threat to anybody , there were inocent collateral causualties.
The entire team was able to leave and this only beacme apparent well after they were safely home, G*d Bless them all!

(17)
Anonymous,
February 22, 2010 2:52 PM

While it is not proven that it was the Israelis pulled this off, there is certainly one good reason to suspect that they did do it. It was successful! That in itself is reason to believe they were responsible. All Europe seizes every opportunity to pile on the Jews. The big fuss, they are manufacturing over the death of an active war participant certainly looks like they are angryist at the perfect success of the operation. Are they jealous of the efficiency of the Israelis? Is all the hate, because they are unable to match all the successes the little nation accomplished (economic, social, medical, scientific, military, literary, ect..) pounds for pound, dollar for dollar, endeaver for endeaver. With all of the problems, is it possible Israel's biggest threat is jealousy?

(16)
Anonymous,
February 22, 2010 9:43 AM

A Blessing

We pray to be protected from our enemies and to conquer them. Why beat our breasts when they are placed before us. Rejoice in victory.

(15)
Geoff,
February 22, 2010 9:37 AM

One less terrorist in the world can never be a bad thing although one wonders what the repercussions of this might be for Israel.

(14)
,
February 22, 2010 6:53 AM

Irrational thining

Rachel you say you'd be willing to "lose your life in a terrorist attack when there is no apparent threat from the perpetrator than to see routine extra-judicial killings when legal due process is a viable". Do you realize how idiotic that sounds?

(13)
Sarah,
February 22, 2010 4:16 AM

Israel's duty

IF Israel did carry this out, it wasn't Israel's right but sacred DUTY to save Israelis and Jews around the world from additional harm by a cold-blooded murderer. May those protecting us go from strength to strength.

(12)
Anonymous,
February 22, 2010 2:29 AM

the world is at war

We need to keep in mind that Islam has declared war on the entire non-muslim world. It is not only declared but they go about the business of killing thousands and thousands of infidels on an almost daily basis.
Is there some reason, that I am missing, why the non-muslim world acts as if it is not at war?
If we are not at war, why have the many thousands died?
We are definitely at war, and no amount of gloss can hide it.

(11)
Donnie Perry,
February 21, 2010 9:26 PM

To Serve and Protect

Good job if Isreal made this hit. The protection of your citizens and I might add revenge for the two soldiers is justified.

(10)
Susan,
February 21, 2010 9:23 PM

IF Israel killed Mahmoud al-mahuoh did it have a right to?

In my own personal opinion, in a word..YES.

(9)
YoAv,
February 21, 2010 8:40 PM

Kudos for Justice meted out

The Texas IRS plane crash was NOT a terrorist act. No one was terrorized by this lone act. Likewise, no one was terrorized by this hit. HaShem requires a just balance; it seems Mahmoud al-Mabhouh received justice.

(8)
Rachel,
February 21, 2010 6:48 PM

Thank you, Prof. Dershowitz; shame on you, Peter

The problem with comment 1 (Exacute (sic) terrorists no matter where they are) is that it doesn't address who is or is not a terrorist. In the Dubai case, it's pretty clear this was inded a terrorist plotting further terror. But in general, the same laws that protect alleged terrorists protect the rest of us too. I have little doubt that if Israel could have captured and tried this man, they would have done so; as would the US, Britain, etc. Covert actions are only appropriate in a situation like this one. I don't say this lightly, but I would be willing to lose my life in a terrorist attack when there was no previous apparent threat from the perpetrator than to see routine extra-judicial killings when legal due process is a viable option. A few days ago a domestic terrorist perpetrated his own personal 9/11 on an IRS office in Texas. I hope no one would suggest that everyone with tax disputes and/or small planes should now be singled out for killing -- but that's where Peter's thinking would eventually lead.

(7)
Anonymous,
February 21, 2010 6:25 PM

"didnt IT have the right to" - how about "didnt WE have the right to" ?

aren't we all Israel? are the Jews in America "somebody else"? dont we all identify with Israel as our own flesh and blood?

(6)
JACQUES COHEN,
February 21, 2010 5:45 PM

I COULN'T BE MORE IMPRESS FOR WHAT THE STATE OF ISRAEL AND AISH IS DOING. GOD BLESS YOU WITH ALL MY HEART.
MR. DERSHOWITZ, I LOVE HIM. GOD GIVES HIM LONG LIFE AND GOOD HEALTH, AND BE FOR A LONG TIME AROUND.

(5)
Louis,
February 21, 2010 5:29 PM

interesting dilemma

Do unto others BEFORE they do unto you. Eh?
My question is: When is mashiac coming so all this nonsense can end?

(4)
Clinton,
February 21, 2010 4:44 PM

An unavoidable consequence.

I agree Peter. Mahmoud al-Mabhouh chose his actions and it would be a crime if someone had the ability to stop him and didn't.

(3)
Isaac,
February 21, 2010 4:24 PM

Fight fire with fire

If this were a war then we would play by the rules of warfare. Terrorism is not a war and therefore we need to work according to the rules of terrorism Now, there are no rules of terrorism. What are the rules of terrorism? Start with the irrational. Start with the chaotic. I am not expert but Israel has been extremely disciplined in its defense against terrorists. Others are judging Israel according to rules which should not apply to terrorism. Criminals who use their own as body shields or who throw bombs into an open market do not deserve the civil treatment that Israel has been providing. Israel should be looked upon as an ideal when it comes to civility and order and treatment of terrorists. I am beginning to think that the word terrorist is perhaps an incorrect word. We should think of them as nothing but criminals for that is what they are. These animals would be on death row and here we are giving consideration about the way we handle them? They are mass murderers who are running away from justice. If there are no alternatives and these criminals continue to kill, then perhaps someone can explain what choices are left.

(2)
Frisco,
February 21, 2010 4:16 PM

If it was Israel GOOD. The assassins deserve a medal.

(1)
Peter,
February 21, 2010 2:44 PM

Exacute terroirsts no matter where they are.

Remember all you bleeding hearts,you may be walking down a steet or riding public transport with your family and some terrorist is going to kill you,He doesn't care about you or anyone else, So kill them before they kill you

I have had a very difficult life, beset by illness, unemployment, and disappointment from those who had pledged to care for me. I am having trouble seeing the benevolent God in all this. What do you say, rabbi?

The Aish Rabbi Replies:

I am very sorry to hear about the difficult times that you have had to endure. The trials that you have gone through no doubt have obviously made your relationship to God a difficult one. I can understand why.

As a rabbi, I have witnessed the most horrendous situations imaginable. I have experienced a 20-year-old who lost both of her parents in a car crash. Can you imagine a girl so close to her parents and in one day they're gone? I've lived through a husband coming home to find that his wife has collapsed, and in two days she's dead. There was nothing wrong with her before. And on and on and on.

When someone is in the midst of suffering, that's not the time to offer answers. It's a time to listen and empathize and be with the person as best you can. If there's anyone going through a painful time and is looking for a sense of relief, I am skeptical whether these intellectual answers will offer any kind of relief.

Dealing with pain and suffering is never easy, particularly since we often feel so helpless and out of control. But one thing we do have control over and that is our attitude. Try to stick to this 3-part formula:

1) Look for the positive side to things.

2) Try not to judge God, Who knows more than we do.

3) Ask God for the clarity to understand how this is for the best.

Our perceptions of good and evil are directly related to our understanding of the world. An African tribesman who never saw a hypodermic syringe in his life could think upon seeing a doctor inoculate a child that the doctor was actually trying to hurt the child! Our perceptions change with information.

Therefore the Jewish approach to "suffering" is that everything happens for the good, but since we are finite and cannot see the whole picture, we perceive some things as bad.

God has more information than we do; thus we cannot judge Him and say He is doing something bad. We trust God and say, "I haven't yet figured out why, but God knows this is for the best."

The Talmud tells the story of Rebbe Akiva who was traveling on the road late one night. His only source of light, a candle, blew out; his mode of transportation, a donkey, ran away; and his only source of food, a chicken, died. The next morning Rebbe Akiva realized that armed bandits had plundered everything in the area. Had they seen his candle, or heard his chicken or donkey, they would have victimized him as well.

We can accept pain and suffering in the world by trying to see what positive side it may have. For example, a woman whose child was killed by a drunk driver went out and started MADD - Mothers Against Drunk Driving. This organization was responsible for revolutionizing the laws against drunk driving in America, and as a result has surely saved thousands of lives. It could be said that the purpose of this child was to elevate his mother to the towering heights of greatness that she indeed achieved as a result of the tragedy.

Of course it is not always easy to find the positive side. But even the attempt helps tremendously. It is interesting that if we look back on our own lives, the times we have grown the most are not when things have gone easy, but when they've been difficult. So many times what appears as "bad" or "negative" ends up being a blessing. A person could lose their job, for example, only to realize later that was the opportunity they needed to break into a growing, new field!

In the meanwhile, we have invested so much time and energy into worrying or regretting - all for nothing and all to our detriment. It is wise to remember that worry is defined as "interest paid in advance on a debt which often times never comes due." So when we are having problems, we can ask ourselves, "What have I learned or gained?"

Also, there are two excellent books I can recommend: "Why me, God?" by Lisa Aiken (published by Aaronson), and "Confronting the Loss of a Baby," by Yamin Levy (Ktav).

In 1973, a cease-fire resolution was passed by the U.N. Security Council to halt the Yom Kippur War. Shuttle diplomacy by Henry Kissinger compelled Israel and Egypt to accept the cease-fire. Fighting, however, would continue for another four days. In the war, Israel suffered the loss of 2,600 soldiers and 800 tanks. Four years later, Egyptian leader Anwar Sadat would visit Jerusalem and announce his readiness to forge a permanent peace deal.

I told a group of people to repeat, "I am grateful to my Creator" five minutes each day for a month. Some of the results were:

* "At first I found it difficult to keep this up. This gave me a jolt. The Creator is giving me life each moment of each day and He gives me the air I breathe. Why is it so hard for me to express my gratitude? This self-rebuke gave me a strong feeling of motivation. I was committed to use the power of repeating messages to myself to build up this gratitude.

* "I realized that I would only be able to repeat this for five minutes at a time if I would sing it with a tune. So I would sing this five minutes each day. It became my favorite song.

* "The first day when I heard this, I found myself having to wait for something to start. I began to feel frustrated. Then I said to myself, ‘This is a perfect time to repeat, "I am grateful to my Creator" for five minutes.' It totally transformed the waiting into an uplifting experience. Throughout the month, I chose potentially frustrating moments to practice this. After a while, the stirrings of feelings of frustration became a trigger to begin my exercise."

* "Someone saw me smiling while I was waiting in line at my local supermarket. He asked me if anything special is going on in my life. "There are a lot of special things that I'm beginning to become more aware of," I replied.

* "By repeating, ‘I am grateful to my Creator,' I began to realize that everyone who is kind to me in any way was sent to me by my Creator. I increased my gratitude towards those people and I increased my gratitude to the Creator of it all."

May He Who knows what is hidden accept our call for help and listen to our cry (Siddur).

The Talmud states that a person may be coerced to perform a mitzvah even if it is required that the mitzvah be done of one's own volition (Rosh Hashanah 6a).

But are not coercion and volition mutually exclusive? Not necessarily, explains Rambam. Inasmuch as the soul of the Jew intrinsically wishes to do the Divine will, and it is only the physical self - which is subject to temptation - that may be resistive, the coercion inflicted upon the person overcomes that external resistance. Thus, when one performs the mitzvah, it is with the full volition of the inner self, the true self, for at his core, every Jew wishes to comply with the mandates of the Torah.

There is a hidden part of us, to which we may have limited access, yet we know it is there. When we pray for our needs, said Rabbi Uri of Strelisk, we generally ask only for that which we feel ourselves to be lacking. However, we must also recognize that our soul has spiritual needs, and that we may not be aware of its cravings.

We therefore pray, said Rabbi Uri, that God should listen not only to the requests that we verbalize, but also to our hidden needs that are very important to us - but which He knows much better than we.

Today I shall...

try to realize that there is a part of me of which I am only vaguely aware. I must try to get to know that part of myself, because it is my very essence.

With stories and insights,
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